Mental Health Not-So-Basics Under the ADA

65 Pages·2016·2.13 MB·English

Mental Health Not-So-Basics
Under the ADA
Marti Cardi, Esq.,
Vice President, Product Compliance

DMEC Dallas Chapter
May 20, 2016
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Mental Health Not-So-Basics Under The ADA
Agenda
 ADA Overview
 When is a Mental Health Condition Protected by the ADA
 Leave as an ADA Accommodation
 Obtaining Medical Information Under the ADA
 Additional ADA Mental Health Challenges
 Avoiding ADA Litigation
 Resources
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TITLE
ADA Overview
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Mental Health Not-So-Basics Under The ADA
• Applies to employers with 15 or more employees
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• Employees have coverage & protections from Day 1
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• Employer duties (1) provide reasonable accommodations

3 (including leave of absence) and (2) not discriminate

• Coverage based on employee’s “disability” as defined by

4 ADA/ADAAA
• Vague parameters (what is reasonable, undue hardship;
what medical info can be obtained; job and benefits
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protections)
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Mental Health Not-So-Basics Under The ADA
Impact of the Expansion of ADA
ADA first effective in 1991 – lots of court wrangling
over coverage
• Does the employee have an impairment?
• “Major life activity”
• “Substantially limits”
• Effect of mitigating measures
• Impairments episodic or in remission

Supreme Court weighed in
Congress and EEOC didn’t like results
• Sutton v. United Air Lines
• Williams v. Toyota
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Mental Health Not-So-Basics Under The ADA
Impact of the Expansion of ADA
In 2009, the ADAAA expanded definition of “disability”
– Clarified activities considered “major life activities”, including addition of the
“major bodily functions” category
– Defined a broad scope of what
“substantially limits” a major life activity
– Established episodic impairment or
impairment in remission as a “disability”
if the impairment would substantially limit a
major life activity in its active state
– Dictated that disability determinations
be made regardless of mitigating
measures such as hearing aids,
medication, medical supplies, auxiliary
– Directed that disability determinations be made
with consideration of the negative effects of
medication or treatment

In short, greatly expanded the classes of individuals covered by the ADA
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Mental Health Not-So-Basics Under The ADA
Factors Creating ADA Risk
• ADA is complex and imposes inherently vague standards
• No waiting periods for new employees – Day One coverage
• ADAAA changed the game:
o made it easier for employees to qualify as “disabled”
o shifted focus to interactive process
• Overlap of ADA , FMLA, and state leave, disability, and WC laws
• EEOC focus on systemic ADA violations – policies & practices
• ADA charges against employers continue to rise
• Market pressures drive demand for improved
attendance and greater productivity
• Many companies are not built to determine
accommodations for one employee at a time
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Mental Health Not-So-Basics Under The ADA
ADA Charges Filed in 2015 by Mental Impairment
2011 2012 2013 2014 2015
Total ADA Charges
25,742 26,379 25,957 25,369 26,968
Filed
Anxiety Disorder 1362 – 5.3% 1609 – 6.1% 1662 – 6.4% 1795 – 1.7% 1934 – 7.2%
Autism 51 – 0.2% 54 – 0.2% 53 – 0.2% 63 – 0.2% 70 – 0.3%
Depression 1837 – 7.1% 1755 – 6.7% 1837 – 7.1% 1769 – 7.0% 1837 – 6.8%
Manic Depressive
861 – 3.3% 836 – 3.2% 884 – 3.4% 755 – 3.0% 816 – 3.0%
Disorder
Other Psychological
436 – 1.7% 411 – 1.6% 415 – 1.6% 362 – 1.4% 389 – 1.4%
Disorders
Post Traumatic
593 – 2.3% 699 – 2.6% 729 – 2.8% 797 – 3.1% 941 – 3.5%
Stress Disorder
Schizophrenia 144 – 0.6% 101 – 0.4% 99 – 0.4% 93 – 0.4% 91 – 0.3%
Total Mental Health 5,233 – 5,465 – 5,679 – 5,634 – 6,078 –
Charges Filed 20.5% 20.8% 21.9% 16.8% 22.5%
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Numbers indicate total charges of type filed, and its percentage of total ADA charges filed
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Mental Health Not-So-Basics Under The ADA
Following the ADAAA – Interactive
Process is King!
Employers who have
The process followed engaged in the
in exploring potential Certainty lies in the interactive process
reasonable process of searching with the employee in
accommodations can for a reasonable good faith will find

be equally as accommodations, not either a workable
important as the necessarily in the accommodation or
decision to results will develop a
accommodate defense to failure to
accommodate
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TITLE
When is a Mental Health
Condition Protected by the ADA?
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